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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO:  38670/2016

REPORTABLE

OF INTEREST TO OTHER JUDGES

3 JULY 2017

In the matter between:

AB                                                                                                                    First Applicant

CB                                                                                                              Second Applicant

and

PRIDWIN PREPARATORY SCHOOL                                                         First Respondent

SELWYN MARX                                                                                    Second Respondent

THE BOARD OF PRIDWIN PREPARATORY

SCHOOL                                                                                                    Third Respondent

THE MEMBER OF THE EXECUTIVE COUNCIL

FOR EDUCATION, GAUTENG                                                               Fourth Respondent

THE INDEPENDENT SCHOOLS ASSOCIATION

OF SOUTH AFRICA                                                                                   Intervening Party

EQUAL EDUCATION                                                                                     Amicus Curiae

JUDGMENT

 

HARTFORD, AJ:

A. INTRODUCTION

[1] AB and CB, being the first and second applicants, are the father and mother, respectively, of two children attending school at the first respondent.  The children are referred to as “DB” who is in Grade 5 and “EB” who is in Grade 1.  Part A of this application was heard by way of urgency in December 2016 wherein an interim order was granted to the effect that the children would be entitled to remain at the first respondent pending the outcome of Part B of this application, including any appeals.  Part B is presently before this court. 

[2] In Part B the applicants seek the following in accordance with their amended Notice of Motion of 7 December 2017:

“1. It is declared that the decision by the second respondent to cancel the Parent Contracts, with the effect that DB and EB are required to leave Pridwin Preparatory School (‘Pridwin’) at the end of 2016, is unconstitutional, unlawful and invalid.

2. The decision of the second respondent to cancel the Parent Contracts, with the effect that DB and EB are required to leave Pridwin at the end of 2016, is reviewed and set aside.

3. It is directed that DB and EB are entitled to remain as pupils at Pridwin.

4. It is declared that clause 9.3 of the Parent Contracts is unconstitutional, contrary to public policy and unenforceable to the extent that it purports to allow Pridwin to cancel the Parent Contract without following a fair procedure and/or without taking a reasonable decision.

5. The costs of Part B of this application, including the costs of two counsel, are to be paid jointly and severally by any respondents opposing it.”[1]

[3] During the hearing of this matter the applicants handed in an amended proposed order which included an additional prayer as follows:

“Nothing in this order shall preclude the second respondent or Pridwin from exercising their rights under the Parent Contracts in the future, provided that any decision to cancel the Parent Contracts or expel DB or EB must follow a fair procedure and be reasonable.”

B. THE FACTUAL BACKGROUND

[4] DB attended Pridwin from 2012 and EB from 2016.[2] Over a period of time, from approximately October 2015 until 30 June 2016, various incidents allegedly took place involving the first applicant, (hereinafter also referred to as “AB” or “the father”) in relation to sporting events at the first respondent and at other schools which created disruption. I shall deal more fully with the facts later regarding the father’s behaviour insofar as they relate to the findings made.

[5] The first respondent cancelled the two parent contracts between itself and the applicants on 30 June 2016 in terms of clause 9.3 of the parent contracts, (hereinafter also “the contract”) and the applicants have challenged the school’s entitlement, on several grounds, to have so terminated them. For convenience I shall refer to the first respondent as “Pridwin” or as “the school”, the second respondent as “Marx”, the intervening party as “ISASA”, and the amicus curiae as Equal Education.

[6] In that the entire application flows from the contract between the applicants and the school, and includes, inter alia, constitutional challenges thereto, the sensible approach is to commence with an analysis of the contract and its terms and thereafter to examine the attacks on the conduct of the school in terminating the said contract according to the various arguments raised.

C. THE RELEVANT TERMS OF THE CONTRACT ENTERED INTO BETWEEN THE APPLICANTS AND THE SCHOOL

[7] I refer to only the salient portions of the contract entered into between the applicants (also “the parents”) and the school which will be examined during the course of this judgment.[3]

“2. GENERAL OBLIGATIONS OF THE SCHOOL

2.1 … The Head may at his/her sole discretion cancel enrolment in accordance with the rules.

2.2 For the sake of clarity, this agreement regulates the enrolment and admission of your child to the school and also regulates the relationship between the school, your child, yourself and/or a third party once your child is admitted and enrolled with the school.

4. PARENT’S GENERAL OBLIGATIONS

4.2 In order to fulfil our obligations, we need your co-operation.  Without detracting from any specific obligations contained in this contract, you are required to:  fulfil your own obligations under these terms and conditions; … maintain a courteous and constructive relationship with school staff;

4.3 The Head may in his or her discretion require you to remove or may suspend or expel your child if your behaviour is in the reasonable opinion of the Head so unreasonable as to affect or likely to affect the progress of your Child or another child (or other children) at the School or the well-being of the School Staff or to bring the School into disrepute.

9. TERMINATION AND NOTICE REQUIREMENTS

9.2 You have the right to cancel this Contract at any time, for any reason, provided that you give the School a full term’s notice, in writing, of this intention before the withdrawal of the child from the School …

9.3 The School also has the right to cancel this Contract at any time, for any reason, provided that it gives you a full term’s notice, in writing, of its decision to terminate this Contract. At the end of the term in question, you will be required to withdraw the Child from the School, and the School will refund to you the amount of any fees pre-paid for a period after the end of the term less anything owing to the School by you. 

9.4 This is without prejudice to the School’s other remedies:  the school may cancel this Contract immediately and has no obligation to return any Deposit or pre-paid fees to you if you are in material breach of any of your obligations and have not (in the case of a breach which is capable of remedy) remedied the material breach within twenty (20) business days of a notice from the School requiring you to remedy the breach, …

9.5 For purposes of this Contract, a material breach is considered to exist where you or your Child (as the case may be) –

9.5.1 fail to uphold the Policies and/or Rules of the School; …

9.5.5 act in such a way that you or the Child become seriously and unreasonably uncooperative with the School and in the opinion of the Head, you or your Child’s behaviour negatively affects your Child’s or other children’s progress at the School, the well-being of School staff, or brings the School into disrepute.”

[8] In clause 1.13 “Policies” is defined as: 

“The rules and principles adopted by the School, as published by the School from time to time, which are used to regulate the day-to-day running of the School.  These Policies may include (but need not be limited to) the School rules;  Schedule of Fees; Debtor’s Policy;  Terms and Conditions of the School; as well as the Code of Conduct and the School’s Cautionary and Grievance Procedures for Parents and are available on request free of charge, or on the School’s website.”

 

D. THE SCHOOL’S TERMINATION OF THE PARENT CONTRACT

[9] On 30 June 2016, Marx wrote to the parents giving them notice of termination in terms of clause 9.3 of the contract.  The notice period given for removal of the children from the school was in excess of the required term’s notice and allowed the children to remain in the school until 9 December 2016, being the end of the 2016 academic calendar.

 

E. PACTA SUNT SERVANDA

[10] The starting point for any contract that has been entered into freely and voluntarily is that contracts bind the parties thereto in terms of the principle “pacta sunt servanda”, save that all legal rights and obligations, including the common law of contract, are now subject to constitutional control.

[11] The position was set out in Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC) by Ngcobo J where it was stated:

“I do not understand the Supreme Court of Appeal as suggesting that the principle of contract ‘pacta sunt servanda’ is a sacred cow that should trump all other considerations. The Supreme Court of Appeal accepted that the constitutional values of equality and dignity may, however, prove to be decisive when the issue of the parties’ relative bargaining positions is an issue ...  All law, including the common law of contract, is now subject to constitutional control. The validity of all law depends on their consistency with the provisions of the Constitution and the values that underlie our Constitution.  The application of the principle ‘pacta sunt servanda’ is, therefore, subject to constitutional control.”[4]

[12] It is accordingly incumbent upon this court to examine the contract itself and thereafter decide whether the constitutional challenges to the contract are valid.

[13] The established principle in relation to the interpretation of contracts was set out in Wells v SA Alumenite Co 1927 AD 69 where Innes CJ held:

“But neither on principle nor authority is there any ground for thus restricting the plain and general language used.  No doubt the condition is hard and onerous; but if people sign such conditions they must, in the absence of fraud, be held to them.  Public policy so demands.  ‘If there is one thing which, more than another, public policy requires, it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred and shall be enforced by courts of justice’ per Jessel, MR …”[5]

[14] This principle has been reaffirmed in several subsequent decisions.[6]  Pacta sunt servanda still holds to this day, subject to constitutional scrutiny. On the present facts, both parties contracted freely and voluntarily, and there was no suggestion anywhere that the applicants had not done so. There was also no allegation that the applicants were in a weaker bargaining position than the school. The question of the parties’ relative bargaining positions as referred to in Barkhuizen supra is thus not an issue before this Court. The plain language of clause 9.3 is clear. The contract was terminable on one term’s notice, “for any reason”. Prima facie, the notice of termination given by Pridwin under clause 9.3 is valid.

[15] The applicants have mounted several challenges to the termination of the contract and I will deal with each in turn.

 

F. WHETHER THE TERMINATION OF THE CONTRACT INFRINGED SECTION 29(1)(a) OF THE CONSTITUTION, 1996

[16] Section 29 of the Constitution provides:

“29. Education

29(1) Everyone has the right –

(a)  To a basic education, including adult basic education.”

“29(3)  Everyone has the right to establish and maintain, at their own expense, independent educational institutions that – …

(c) maintain standards that are not inferior to standards at comparable public educational institutions.”

[17] The applicants submit that whilst the primary duty to provide basic education rests on the State, Pridwin is under a duty not to unreasonably impair or diminish the right to basic education of its learners[7] and that in terminating the contract, Pridwin was bound to act reasonably, which it failed to do.[8]

[18] The applicants relied heavily for this submission on the case of Governing Body of the Juma Masjid Primary School and Others v Essay N.O. and Others (Centre for Child Law and Another as Amici Curiae) 2011 (8) BCLR 761 (CC) (hereinafter “Juma Masjid”). They argued that it demonstrated that, whilst the primary duty to provide basic education is on the State, private actors are under a duty not to interfere with or diminish the existing enjoyment of the right.  In essence the applicants contend that a negative duty exists on Pridwin, even if it is a private institution, as it was performing a constitutional function, not to impair existing access to basic education.[9]

[19] The facts in Juma Masjid are pertinent. The Juma Masjid Primary School was a public school. The Trust which owned the property on which it was situated permitted the Provincial Department of Education to enlist the school as a public school.  No agreement was concluded between the Department and the Trustees in terms of s 14(1) of the South African Schools Act 84 of 1996.  Some years later the Trustees gave written notice terminating the Department’s right of occupation.  The Department did not vacate the premises and the Trustees launched an application for the eviction of the school which was granted by the High Court.

[20] The Constitutional Court provisionally set aside the eviction order as it had an impact on the learners’ right to a basic education under s 29(1) of the Constitution and “therefore the High Court ought to have required the MEC to provide it with information regarding the steps she had taken to ensure that the learners would have schools at which they would be enrolled for the 2011 academic year.  As this had not happened, the High Court order was set aside and a provisional order made”.[10]

[21] At the final hearing, the court found that the report by the MEC satisfied it in that alternative arrangements for the placement of the children for the 2011 school year had been made and it granted a final eviction order.[11]

[22] Nkabinde J stated:

“It is clear that there is no primary positive obligation on the Trust to provide basic education to the learners. That primary positive obligation rests on the MEC.

There was also no obligation on the Trust to make its property available to the MEC for use as a public school.  This Court, in Ex Parte Chairperson of the Constitutional Assembly … made it clear that socio-economic rights (like the right to a basic education) may be negatively protected from improper invasion. Breach of this obligation occurs directly when there is a failure to respect the right, or … a failure to respect the existing protection of the right by taking measures to diminish that protection. … It needs to be stressed however that the purpose of section 8(2) of the Constitution is not to obstruct private autonomy or to impose on a private party the duties of the State in protecting the Bill of Rights. It is rather to require private parties not to interfere with or diminish the enjoyment of a right.” (my emphasis)[12]

[23] In relation to the Trust, Nkabinde J found that it had permitted the Department to enlist a public school on its property, and it also performed the public function of managing its affairs including paying costs which the Department ought to have provided and that the Trust had a duty not to impair the leaner’s right to a basic education.[13]

[24] The court then went on to examine the reasonableness of the Trustees’ action in seeking eviction and stressed that:

“The Trust’s obligation is secondary and, important to remember, arises only from its willingness to allow the property to be used as a public school and to enter into a section 14 agreement.  It did not give up its rights of ownership of the property. At most, the Trust’s constitutional obligation, once it had allowed the school to be conducted on its property, was to minimise the impairment of the learners’ right to a basic education.”[14]

The court then concluded that the Trustees had acted reasonably in seeking eviction.[15]

[25] In that the primary positive obligation to provide a basic education falls upon the State and not on private individuals (section 12(1) of Act 84 of 1996; Juma Masjid) and whilst this right must be negatively protected from invasion by private individuals or entities exercising private powers for public purposes,

as were the facts in Juma Masjid, it must first be established that the private individual is in fact exercising private powers for public purposes.

[26] Under s 239 of the Constitution:

“organ of state means –

(a) any department of state or administration in the national, provincial or local sphere of government; or

(b) any other functionary or institution –

(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution, or

(ii) exercising a public power or performing a public function in terms of any legislation …”

Pridwin has no constitutional obligation to provide a basic education as that is the obligation of the State. Pridwin is not a public school and is entirely independent of the State as it receives no subsidies from the State.

[27] The only manner in which Pridwin could perform a function in terms of the Constitution or perform a public power in terms of legislation would be for it to contract with the State to perform such a function, as occurred in Juma Masjid where the Trust permitted a public school to use its land.  Similarly, in Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social Security Agency and Others 2014 (4) SA 179, (CC) a contract to perform the countrywide administration of the payment of social grants by Cash Paymaster, was held to be fundamentally public in nature.[16]  There is no contractual nexus between Pridwin and the State in the present case obliging Pridwin to perform any public function or exercise any public power. To find that Pridwin was in fact doing so without a contract would amount to a finding that Pridwin was encroaching upon state functions.

[28] Pridwin can similarly not be deemed to be a quasi-organ of State as would apply to a low fee independent school which is subsidised by the State.  In such a subsidised independent school, there would indeed be an obligation to provide a basic education, as were the facts in Juma Masjid.  However, in the case of Pridwin, for the reasons above, the position is different.  There is thus no obligation on Pridwin to provide a basic education in terms of s 29(1) as it is fully funded privately by its parents.

[29] As was stated in Khan v Ansur NO and Others 2009 (3) SA 258 (D) by Swain J:

“As I understand the argument, the effect is to transform the nature and identity of a private school into that of a public institution whose officials, when exercising the power not to reregister the applicant, exercised a public power and performed a public function.  The leap of logic inherent in such reasoning only has to be stated to be rejected.  It is clear that there is a fundamental statutory distinction between a public school and an independent school in terms of the South African Schools Act 84 of 1996. The administrative control over an independent school by the executive branch of government lies in the power to register and deregister such a school.  The object is obviously the maintenance of educational standards in independent schools. There is, however, no control over the administrative decisions taken by officials of an independent school in the exercise of their functions.  Such officials therefore do not exercise a public power, nor perform a public function, when doing so.”[17] [my emphasis]

[30] This view was confirmed in the unreported judgment of Van Amstel J in the case of Artwell Francis Mlawuli v St Francis College (Marianhill Secondary Independent School.)[18]

[31] In KwaZulu-Natal Joint Liaison Committee v MEC Department of Education, KwaZulu-Natal and Others 2013 (4) SA 202 (CC), Cameron J, in dealing with the obligation of the State to pay subsidies to independent schools, stated that:

“So while it is correct that the state is not obliged to pay subsidies to independent schools, when it does so in terms of national and provincial legislation it is plainly acting in accordance with its duty under the Constitution in fulfilling the right to a basic education of the learners at schools that benefit from the subsidy. And once government promises a subsidy, the negative rights of those learners – the rights not to have their right to basic education impaired – is implicated.”[19] [my emphasis]

[32] The facts in the present case are thus distinguishable from Juma Masjid and KwaZulu-Natal in that Pridwin receives no subsidies from the State at all.[20] Juma Masjid was a public school, and in the KwaZulu-Natal case the school received a state subsidy.  I cannot find that Pridwin, as a wholly independent school, has the obligation to provide a basic education in terms of s 29(1) of the Constitution.

[33] The right to a basic education in section 29(1) cannot possibly include the right of a learner to attend a wholly independent school, as if this was the purport of section 29(1), every learner would claim entitlement to attend only the best fully independent schools.

[34] In consequence, on a practical level, article 29(1)(a) does not guarantee a right to equal education for all people and nor does it guarantee a right to attend an independent school of one’s choice. If this were the position, chaos would ensue.

[35] Once Pridwin does not have the obligation to provide a “basic education” in terms of s 29(1) of the Constitution, it is necessary to examine what other obligations it may have in terms of the Constitution, as a fully independent private school.  Section 29(3) of the Constitution is one such obligation.

[36] Section 29(3) of the Constitution obliges independent schools to “maintain standards that are not inferior to standards at comparable public institutions”.

[37] Where parents elect to send their children to independent schools that are not State subsidised in any way, they clearly still have the guarantee that their children will receive an education not inferior to that offered at a comparable public school.   There is no suggestion made by the applicants that Pridwin provides a standard of education inferior to that offered in a public school.

[38] The right to a basic education in section 29(1)(a) is accepted by all the parties. I thus find that whilst everyone is entitled to a basic education in terms of article 29(1)(a) of the Constitution, this basic education must be provided by the State either through public schools or independent schools subsidised by the State. Pridwin does not have the obligation to provide a basic education, and nor does it have a negative constitutional obligation not to impair DB and EB’s rights to a basic education as it does not receive a subsidy.  Cameron J above linked a “negative” obligation in KwaZulu-Natal supra directly to the fact that “once government promises a subsidy, the negative rights of those learners … is implicated”.[21]

[39] Significantly, in any event, and even if Pridwin does have a negative constitutional obligation not to impair DB and EB’s rights to a basic education by terminating the contract, Pridwin did not breach this obligation on the facts.

[40] After terminating the contract, Pridwin wrote to the Department of Education and secured a written undertaking from the Chief Director, School Management, that both DB and EB would be guaranteed a place at a public school in 2017, immediately after the children were to leave Pridwin.[22] 

[41] This guarantee of places for DB and EB in a public school is on all fours with the findings of Nkabinde J in Juma Masjid that:

“Upon considering the reports and further information furnished … this court was satisfied that the Trustees had made out a case for eviction and that satisfactory arrangements had been made by the MEC to ensure that all learners will be accommodated at other schools during the 2011 school year.”[23]

[42] Flowing from all the circumstances, Nkabinde J also found that “the Trustees acted reasonably in seeking the order for eviction”.[24] Consequently, Pridwin, having ensured that DB and EB would receive their right to a basic education at a public school, complied with any negative constitutional obligation, if it had one, not to impair or diminish their right to a basic education and acted reasonably in taking its decision.

[43] Further, as appears from Marx’s affidavit,[25] there are three public schools in the parents’ area of residence that would be obliged to accept them. 

[44] The applicants have accordingly misconstrued their right to a basic education.  They seek not a basic education for their children, but a right to be educated at an entirely independent school, Pridwin, and this is what distinguishes this case from the facts in the Juma Masjid case.

[45] The applicants interpret their right to a basic education as being one entitling them to have whatever education they choose for their children. This is clear from the tenor of their affidavits and the arguments of their counsel. The applicants state that they want their sons to be schooled “at a school of the academic quality of Pridwin”[26] and referred to “the difficulty of finding placement in a comparable school”.[27]  They also state that their children will not be able to attend schooling in an independent school of equivalent quality to Pridwin in an area where they live.[28]

[46] A Pridwin standard of education is not what is guaranteed in section 29(1)(a) of the Constitution.  Once it is found that Pridwin has no obligation to provide basic education in that this is the State’s obligation, it cannot be found that Pridwin is interfering with the children’s right to a basic education when it cancels their membership of the school and the MEC confirms that she will guarantee them a place in a public school from the time when the children leave Pridwin.

[47] I therefore conclude that Pridwin has neither breached the children’s right to a basic education in terms of section 29(1)(a) of the Constitution nor diminished their enjoyment of that right by terminating the parent contract in accordance with clause 9.3.

[48] I turn now to deal with the applicants’ submissions that Pridwin has breached the constitutional rights set out in section 28(2) of the Constitution.

 

G. WHETHER THE TERMINATION OF THE CONTRACT INFRINGED THE CHILDREN’S RIGHTS IN TERMS OF SECTION 28(2) OF THE CONSTITUTION, 1996

[49] The applicants’ second challenge is based on section 28(2) of the Constitution.

[50] Section 28(2) of the Constitution provides that:

“A child’s best interests are of paramount importance in every matter concerning the child.”

[51] In Director of Public Prosecutions v Minister of Justice 2009 (4) SA 222 (CC) the Constitutional Court clarified this as follows:

“Section 28(2) is ‘an expansive guarantee’ that a child’s best interests will be paramount in all matters concerning the child.  This provision thus imposes an obligation on all those who make decisions concerning a child to ensure that the best interests of the child enjoy paramount importance in their decisions. Section 28(2) provides a benchmark for the treatment and protection of children.”[29]

[52] The applicants submit that this obligation is imposed not merely on public officials but also on private persons. Pridwin accepts that it is bound by this provision.

[53] The point of departure between the applicants and Pridwin is that the applicants submit that, in terms of section 28(2) of the Constitution, Marx first had to afford the parents an opportunity to make representations on whether a termination decision would be in the best interests of DB and EB before terminating,[30] whereas Pridwin contends that it had only the obligation to take the best interests of the children into account when making its decision to terminate, and that this obligation included taking the best interests of all the other children in the school into account as well.

[54] The applicants referred, in support of their submission, to the judgment of C and Others v Department of Health and Social Development, Gauteng and Others 2012 (2) SA 208 (CC) as follows:

“Section 28(2) of the Constitution requires an appropriate degree of consideration of the best interests of the child.  Removal of a child from family care, therefore, requires adequate consideration. As a minimum, the family and particularly the child concerned, must be given an opportunity to make representations on whether removal is in the child’s best interests.”[31] [my emphasis]

[55] Despite conceding that “removal from family care is of course not the same as removal from school”,[32] the applicants argued that the same principle applies here. They thus submit that Marx, when making a decision that would have a profound effect on the rights and interests of DB and EB, was required to give the parents an opportunity to make representations on whether the cancellation decision was in the best interests of their children before taking that decision.

[56] Pridwin, accepting its obligations in terms of section 28(2) of the Constitution, submits that Marx did indeed consider the best interests of DB and EB, weighed up their interests against the best interests of the other children in the school and made his decision in accordance with these considerations.

[57] In this regard the letter of termination by Marx reads as follows:

“As a result of your material breach of the contract as detailed above, the school is entitled to immediately cancel the Contracts … In the interests only of your sons, [my emphasis] I have instead, in my sole discretion, elected to invoke clause 9.3 of the contract … Accordingly, and without prejudice to any other rights of the School to invoke clause 9.4 and/or institute a claim for damages against you, you are hereby given a full term’s written notice that the contract to provide education to your boys … will be terminated at the end of the third term 2016 and the boys’ last day will be 9 December 2016.”[33]

[58] The applicants have chosen to seek final relief on motion rather than proceed by way of action whereby any evidence led can be fully and properly tested under cross-examination.

[59] The long established rule relating to motion proceedings was reiterated in National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) by Harms DP as follows:

“Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues because they are not designed to determine probabilities.  It is well established under the Plascon-Evans rule that where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant’s [Mr Zuma’s] affidavits, which have been admitted by the respondent [the NDPP], together with the facts alleged by the latter, justify such order. It may be different if the respondent’s version consists of bald or uncreditworthy denials, or raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers.”[34]

[60] The applicants have not contended that Pridwin’s version that Marx took the interests of the children into account when making his decision is “palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers”.  Accordingly this court cannot find, when final relief is sought, that Marx did not take account of the paramount importance of the rights of the applicants’ children when deciding to terminate the parent contract.

[61] The question then arises as to whether the rights of children in section 28(2) of the Constitution trump all other rights. In this regard the wording of the Constitution is insightful.  Section 28(2) states that:

“A child’s best interests are of paramount importance in every matter concerning the child.”

The section does not say that a child’s best interests must override all other considerations.

[62] Indeed, the right of children to have their best interests afforded paramount importance in every matter concerning them is an unspecific right of general application and, as appears below, must thus contemplate the ranking of it against other rights, including, too, in this case, the equally important rights of the other children in the school.

[63] In S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC) Sachs J stated:

“A more difficult problem is to establish an appropriate operational thrust for the paramountcy principle.  The word ‘paramount’ is emphatic.  Coupled with the far-reaching phrase ‘in every matter concerning the child’ and taken literally, it would cover virtually all laws and all forms of public action, since very few measures would not have a direct or indirect impact on children, and thereby concern them.  Similarly, a vast range of private actions will have some consequences for children.  This cannot mean that the direct or indirect impact of a measure or action on children must in all cases oust or override all other considerations.  If the paramountcy principle is spread too thin it risks being transformed from an effective instrument of child protection into an empty rhetorical phrase of weak application, thereby defeating rather than promoting the objective of section 28(2).  The problem, then is how to apply the paramountcy principle in a meaningful way without unduly obliterating other valuable and constitutionally protected interests.

This court, far from holding that section 28 acts as an overbearing and unrealistic trump of other rights, has declared that the best-interests injunction is capable of limitation … Accordingly, the fact that the best interests of the child are paramount does not mean that they are absolute.  Like all rights in the Bill of Rights their operation has to take account of their relationship to other rights, which might require that their ambit be limited.”[35] [my emphasis]

[64] In addition, Nkabinde J in the Juma Masjid case, stated:

“The remarks made by this Court, per Sachs J in Port Elizabeth Municipality v Various Occupiers,[36] regarding the role of our courts when confronted with competing rights find resonance here. The court elaborated that the Constitution:

‘Imposes new obligations on the courts concerning rights relating to property … It counterposes to the normal ownership rights of possession, use and occupation, a new and equally relevant right not arbitrarily to be deprived of a home … The judicial function in these circumstances is not to establish a hierarchical arrangement between the different interests involved, privileging in an abstract and mechanical way, the rights of ownership over the right not to be dispossessed of a home, or vice versa.  Rather, it is to balance out and reconcile the opposed claims in as just a manner as possible, taking account of all the interests involved and the specific factors relevant in each particular case.’

Although these remarks were made in relation to housing rights, I consider that their analogous application to this case is justified.”[37]

[65] In the present situation a balancing act had to be undertaken by Marx between the rights of the applicants’ children and those of the other 445 children in the school. In that both were equally important, Marx was obliged to weigh up the two competing sets of rights against each other and determine the best way forward.

[66] Marx explained the process he adopted as follows:

“170. As aforesaid, in making my decision on 30 June 2016, I had to take both the applicants’ sons’ rights, as children, into consideration, as well as the 445 other children at the school and their rights, as children.

171. Being aware of the ethos of the school, as expressed in its mission and value statement, and taking the aforesaid rights of the applicants’ children and all other children at the school into consideration, having concluded that the conduct of the first applicant was harmful to the children at the school, was upsetting and disruptive to the staff at the school and infringed the good name of the school, I decided to cancel the parent contracts, but to do so (not immediately but) giving the applicants in excess of a full term’s notice.

172. To suggest that the rights of the applicants’ children were not paramount in my decision is both insulting and untrue, when regard is had to the very words that I employed in the letter of 30 June 2016, namely that:-

‘… In the interests only of your sons, I have instead (of terminating immediately in terms of clause 9.4), in my sole discretion elected to invoke clause 9.3 of the contract.’”[38]

[67] The applicants’ response to the allegations of Marx pertaining to the above was a bare denial coupled with a submission that it is a matter for argument.[39]  Further, the first applicant also, in relation to the termination letter admits its terms as follows:

“I also admit the contents of the notification cancelling the Parent Contracts to the extent that they are correctly recorded herein.”[40]

[68] The applicants provide no creditworthy answer to the factual allegations of Marx and I am unable to find that his allegations justify the court in “rejecting them on the papers” (supra).

[69] I thus must accept, on the Plascon-Evans[41] test, that Marx, in furtherance of his constitutional obligation to consider the paramount interests of all children in his school, weighed up both the interests of the applicants’ children and those of all the other children.  The impact of a decision on one child does not override all other considerations including those which impact on other children.

[70] A further question that arises is whether Marx gave an “appropriate degree of consideration” to the best interests of the applicants’ children as required by Skweyiya J in C and Others v Department of Health and Social Development, Gauteng and Others 2012 (2) SA 208 (CC) cited supra.[42]

[71] There the court found, in considering whether to remove children from their family in terms of the Children’s Act, that the family and children should have been given the opportunity to make representations as to whether it was in the children’s best interests.

[71] Marx sets out in detail the events that have allegedly occurred as a result of the first applicant’s conduct at the school over a period of 8 months which informed his decision.

[73] In engaging in his balancing act between the rights of DB and EB and the other children in the school Marx considered the inappropriate behaviour of the first applicant, documented in the founding affidavit as read with the answering affidavit, and the effect it was having on the other children in the school, as well as the teachers and parents.

[74] The first applicant admits to conduct that was, on his own version, at the very least, interference with sporting activities at the school. He states, in relation to the events at an under 10A cricket team match against St John’s Preparatory School, that:

“During the match, I enquired from Pridwin’s coach, Brandon Broderick, why he had given DB out, when DB had not made any contact with the ball. Mr Broderick told me to be quiet.  He was extremely rude and confrontational.  As a result, we had an altercation.” [my emphasis][43]

Again, he states, in relation to the Head of Sport at Pridwin:

“This followed a series of disagreements between me and Mr Joubert.”[44]

Further, in relation to the soccer trials where the first applicant, even though his son was not playing in them due to illness, brought an outside private soccer coach, one Mr Mosoana, to watch the trials stated:

“Mr Mosoana and I proceeded to sit and watch the trials.  I did not express criticism of ‘what was happening on the field’.  Instead, Mr Mosoana and I had a private and quiet conversation about what we could work on in relation to DB’s skills approach.”[45]

and

“During a drinks break at the trials, Mr Mosoana attempted to converse with Eswee Prinsloo … one of the coaches running the trials.  Mr Mosoana did so then (rather than at the end) because he could not wait …

Mr Prinsloo, in no uncertain terms, informed Mr Mosoana that he did not want to engage with Mr Mosoana in respect of the trials or football at Pridwin …

At this point, I went onto the pitch and attempted to converse with Mr Prinsloo …” [my emphasis][46]

[75] In relation to the incident at the Trinity House cricket festival, the first applicant states:

“I admit that there was an incident between myself and an umpire in the employ of Trinity.  When I questioned the decision of the umpire he was dismissive, called me a liar and stated that I did not know cricket.” [my emphasis][47]

All of the above confirm, on the first applicant’s own version, that when attending the sports events described, he was meddling with the functions of the sports coaches and creating disruption publicly.

[76] Removal of a child from one school to another school is not similar to removal of a child from his family as occurred in C and Others v Department of Health supra.  There, “adequate consideration” was found by the court to be the entitlement of the family and children to make representations.

[77] On all the facts presented to this court, and bearing in mind that the matter was brought by way of application, I am satisfied that Marx did give an “appropriate degree of consideration of the best interests of the child” and that he took his decision, in compliance with the obligations of section 28(2) of the Constitution, by giving the best interests of both the applicants’ children and the other 445 children in the school paramount importance when taking his decision to terminate. It is apparent that Marx did not disregard the applicants’ children’s interests but indeed engaged in a proper balancing act.

[78] I turn now to deal with the applicants’ contentions that there has been procedural unfairness in the termination of the contracts by virtue of the fact that the applicants were not given an opportunity to make representations prior to the decision to terminate being given.

 

H. WHETHER THE APPLICANTS HAD A RIGHT TO BE HEARD IN TERMS OF THE CONSTITUTION

[79] The applicants have alleged that Marx, in making his decision regarding whether to cancel the contracts, and flowing from his obligations in terms of sections 28(2) and 29(1) of the Constitution, was also obliged procedurally to afford the parents of the children an opportunity to make representations on whether a cancellation decision would be in their best interests before taking such decision.

[80] It is clear that this is not an application in terms of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”) and this is accepted by the applicants.

[81] Once one is beyond the realm of PAJA, the applicant is bound to rely directly on the Constitution for asserting a right to be heard prior to a decision being taken. The applicants were unable to direct this court to any decision whereby it was found that, before one party may terminate a contract in accordance with the notice provisions for termination in that contract, the other party is entitled first to make representations and be given a hearing in that regard.

[82] In support of their arguments, the applicants referred to the dictum of C v Department of Health and Social Development, Gauteng and Others 2012 (2) SA 208 (CC) cited supra.

[83] As already stated, this case is distinguishable from those facts, as that court dealt with the removal of children from their parents and was not a contractual matter at all, as is the case here.

[84] As correctly pointed out by counsel for ISASA, the aforesaid judgment concerned the impugning of sections 15 and 15(2) of the Children’s Act.  The court found that the said sections were constitutionally invalid. Of great importance is the continuation of what Skweyiya J went on to find in the very same paragraph cited by the applicants in support of their contentions:

“Accordingly, the impugned provisions of the Children’s Act inflict a limitation on the right in section 28(2), in that they do not provide for adequate consideration of the best interests of the child.” [my emphasis][48]

[85] It was for this reason that the court found that the children had not had their best interests taken into consideration when they were removed without any opportunity to state their case.

[86] Accordingly, in that case, the separation of a mother and father from their children, without recourse to a court or even being heard, was a grave violation of various rights which do not apply here. In the present case, the termination of the parent contract does not prevent DB and EB from being schooled at the public school offered by the Department of Education and getting the basic education to which section 29(1) entitles them.

[87] The applicants also rely on the case of Joseph and Others v City of Johannesburg and Others 2010 (4) SA 55 (CC) in support of their argument that Marx was under a constitutional duty to act reasonably in taking a decision which would impair or diminish the children’s existing access to education and that he could not “possibly hope to act reasonably without at least hearing from the parties directly affected and who were likely to be in possession of the relevant facts – that is AB and CB on behalf of their children”.[49]

[88] In Joseph supra, the Constitutional Court quotes Hoexter as follows:[50]

“Procedural fairness … is concerned with giving people an opportunity to participate in the decisions that will affect them, and – crucially – a chance of influencing the outcome of those decisions.  Such participation is a safeguard that not only signals respect for the dignity and worth of the participants, but is also likely to improve the quality and rationality of administrative decision-making and to enhance its legitimacy.”[51]

That court was dealing with a situation of an administrative decision-making process and accordingly, in that the present matter does not concern an administrative decision, but an invocation of a contractual clause, it is not authority for the proposition put forward by the applicants that Marx was obliged to give the parents a hearing prior to taking his decision.  There is thus, in my view, no procedural obligation on these facts for Marx to have been obliged to first give a hearing as contended for by the applicants when exercising his right to terminate the contract on notice.

[89] Indeed, to find such a provision in law exists requiring a hearing in these circumstances would create an absurd situation and open the floodgates in relation to the termination, on notice, of all contracts involving children whether directly or indirectly. By way of an extreme hypothetical example, if the applicants  had contracted with a bank in terms of a credit agreement to purchase a scooter for their sons specifically to ride to school and thereafter defaulted on their payments, and where the breach clauses in the credit agreement gave the bank the right to cancel and repossess the scooter, the result of a finding by myself that, in law, Pridwin was obliged to give the applicants an opportunity to make representations prior to terminating the contract would similarly extend to an obligation on the bank to first give the applicants a hearing on the best interests of the children prior to taking a decision to terminate the credit agreement and repossess the scooter.  The children’s constitutional interests would purportedly be affected by the repossession of the scooter in that they would no longer be able to get to school for their basic education.

[90] So too, if payment is not made by the parents in a contract with an orthodontist to have a child’s teeth straightened, the orthodontist would have an obligation to first give the parents a hearing on whether the child will be prejudiced by a cancellation of the contract pertaining to his teeth prior to invoking the termination clause in his contract on notice.

[91] One can conjure up numerous other examples of the impractical and far reaching results if such a finding were to be made by this Court.  In all commercial contracts dealing with children, the outcome would be that a hearing would have to be given whenever a termination clause on notice is invoked.  The case of C and Others v Department of Health and Social Development did not involve general commercial contracts at all. It involved a situation where children were being removed from their parents in terms of legislation without any consideration of their interests being undertaken at all.

[92] Sight should also not be lost of the fact that clause 9.3 is but part of a reciprocal entitlement of the applicants to cancel the parent contract themselves in terms of clause 9.2 “for any reason, provided that you give the School a full term’s notice, in writing, of this intention before the withdrawal of the Child from the School”.  Taken to its logical conclusion, on the applicants’ own argument, should the applicants terminate the contract on a term’s notice for the purpose of removing their children from the school, for example, to a school in a war zone, Pridwin would be entitled to demand a hearing and make representations to the applicants as to why, in the children’s best interests, they should not take their children to a war zone before the applicants could exercise their right of termination on notice.  This cannot be the position.

[93] Having found that there is no automatic right flowing from the Constitution obligating Marx to have given the parents an opportunity to make representations prior to invoking the termination on notice clause, and having found that it was nevertheless incumbent on Marx to take the children’s best interests into account as weighed up against the other children in the school, which he did, I am of the view that there has been no procedural breach by Pridwin.

[94] I turn now to examine the next argument of the applicants that, in terms of the contract itself, the principles of natural justice are applicable and require that Marx give the parents an opportunity to make representations prior to taking his decision.

I. WHETHER THE PARENT CONTRACT ITSELF AFFORDED THE APPLICANTS THE RIGHT TO BE HEARD IN ACCORDANCE WITH THE PRINCIPLES OF NATURAL JUSTICE

[95] In a contractual context the principles of natural justice will be applicable if they are expressly or impliedly incorporated into the contract in question.[52]

[96] In the present case, such right does not appear expressly from the parent contract. In Khan’s case[53] (supra), where the court was dealing with a private school’s decision not to re-register a former pupil, it was said that the school had not exercised its discretion reasonably in the circumstances and had failed to observe the principles of natural justice, and in particular, the audi alteram partem principle. It was stated there as follows:

“As regards the complaint that the school failed to observe the precepts of natural justice, the following dictum of Broome JP in the case of Thandroyen v Sister Annuncia and Another 1959 (4) SA 632 (N) at 639F is apposite:

‘Mr Didcott based this part of his case upon the contention that Edwin’s expulsion was in conflict with the principles of natural justice, one of which principles being the right to be heard.  It is important at the outset to bear in mind that the present inquiry is in the realm of contract. Normally the principles of natural justice, including the right to be heard, have no place in the realm of contract.  Where A complains that B has broken a contract between them the Courts will grant him relief on proof of the breach and will not ordinarily be interested in the principles of natural justice or in whether B has given him an opportunity of being heard. This is the same whether the contract is one of sale or letting and hiring or of employment.  The principles of natural justice apply only if the parties have imported them into their contract.  Speaking generally they will not be held to have done so unless the contract has set up something in the nature of a tribunal (which may be a tribunal of one) to decide matters affecting the parties.  Such a tribunal will be bound by the principles of natural justice, unless indeed the parties have in their contract provided otherwise, as they are perfectly entitled to do so. But if the contract sets up no such tribunal, there will be no room for the application of the principles of natural justice, whether on the ground of public policy or otherwise …’”

[97] Thus Khan supra makes it clear that the principles of natural justice do not ordinarily form part of a contract and will only do so if they have been imported into it, and that this will generally not be found to be so unless the contract sets up a form of tribunal to hear issues, in which case the tribunal will be bound by the principles of natural justice.

[98] The applicants submitted that the parent contract impliedly or expressly incorporated the principles of natural justice by virtue of the fact that clause 1.4 of the parent contract provides that “Contract” means this document, including all its annexures as well as any Policies.[54] In this context, they refer to the following:

a) Clause 3.11.1 of the Policy on Effective Governance which provides that: “It is essential to set up grievance procedures for all stakeholders (pupils, teachers, parents, alumni and any group effected by their continued presence at the school”).  This reduces the likelihood of grievances escalating into major issues.[55]

b) Clause 1.2.1.6 of Pridwin’s Mission Statement that “encourages a collaborative partnership between the governors, staff, parents, pupils and the wider Pridwin Community”,[56]

c) clauses 1.3.1 to 1.3.3 of the Pridwin grievance procedure which expressly provides “for a hearing with the Headmaster, whereafter there is a two-stage appeals process.”[57]

[100] These clauses do not set up a tribunal “or something in the nature of a tribunal” for the purpose of dealing with the termination of the parent contract on notice. As the applicants acknowledge “on its face the grievance procedure is applicable to employees who have grievances against the school”.[58]

[101] There is nothing in any of the documentation referred to above by the applicants that incorporates any procedure whatsoever for the termination of the contract on notice in terms of clause 9.3.  Clause 9.3 is very specific and clear in its language and I can find no reason to read into it an implied right to be heard prior to its invocation.  This, similarly, applies to clause 9.2 which allows the applicants the identical right to terminate on notice.

[102] Finally, the applicants relied on a supplementary affidavit handed in at the hearing of this matter which attached part of the Communications Protocol Agreement signed between the Department of Basic Education and National Alliance of Independent School Associations.  Pridwin is a member of the latter.

[103] The applicants were unable to state whether this document predated the drafting of the parent contract in question here.  The applicants conceded that it is not legally binding and is not a regulation or a directive. They argued that it must nevertheless be regarded as part of the context of matters present in the minds of the parties when they contracted.[59]

[104] This document was simply plucked from the internet and provided to this Court without further information. There is neither a date that it was signed on placed before the court, nor any evidence provided to show that it was part of the context in which the parent contracts were drawn up. In any event, clause 8 of the document refers to a termination for breach, but does not refer to a termination on notice, as was the case here.[60]

[105] I therefore find that this document takes the matter no further in assisting the applicants in their quest for a reading into the contract of a requirement that the school must have given the parents an opportunity to be heard prior to terminating the contract.

 

J. WHETHER THE DECISION TAKEN BY MR MARX WAS SUBSTANTIVELY UNLAWFUL

[106] The applicants allege that the sins of the father should not be visited upon his children, DB and EB, as a result of section 28(2) of the Constitution. They refer to the case of S v M (Centre for Child Law as Amicus Curiae) [2007] ZACC 18; 2008 (3) SA 232 (CC) in support of this contention.  There, Sachs J stated:

“The unusually comprehensive and emancipatory character of section 28 presupposes that in our new dispensation the sins and traumas of fathers and mothers should not be visited on their children.”[61]

[107] This dictum was pronounced in the context of determining the sentence in a criminal matter where it was necessary to determine the effect of a custodial sentence of a parent on the children.  Nevertheless, in the context of the “sins of the father” argument, Sachs J also stated:

“This court, far from holding that s 28 acts as an overbearing and unrealistic trump of other rights, has declared that the best interests injunction is capable of limitation.”[62]

[108] The applicants argued that the sins of the first applicant and therefore the consequences of what I find to be his inappropriate behaviour, on his own version, should not be visited upon his children.

[109] This doctrine must, in my opinion, logically be expanded to include that the “sins and traumas” of DB’s and EB’s father should equally not be visited upon other children in the school who are also protected by s 28(2) of the Constitution. There is absolutely no reason why the first applicant’s children should be protected from his “sins” at the school, whilst all the other 445 children in the school should suffer as a result of his “sins”.

[110] The applicants, in their application, conveniently forget that it is not just their own sons whose best interests are of paramount importance in our Constitution. Pridwin amply describes in its affidavits how the behaviour of the first applicant affected, negatively, the interests of the other children at Pridwin.

[111] The applicants argue further that Marx’s decision was the unreasonable exercise of a discretion and that he should have considered alternative sanctions rather than terminate the children’s membership of the school. The discretion that Marx had to exercise was to determine whether he should cancel the parent contracts with immediate effect because of a material breach thereof, flowing from the father’s conduct, or whether termination should be given on notice in terms of clause 9.3.

[112] There is no general requirement in our law that the application of the terms of a contract need to be fair and reasonable.  Only if a term is contrary to public policy or a constitutional value will it not be enforced.

[113] In Bredenkamp and Others v Standard Bank of South Africa Limited 2010 (4) SA 468 (SCA), the appellant had sought to interdict the respondent from cancelling the contracts that underlay his banking facilities.  The respondent had given notice of cancellation in terms of the contracts relying on an express term entitling it so to do, alternatively an implied term to the same effect, namely termination on reasonable notice of an indefinite contract.

[114] In that case, the appellant claimed that such an implied term was contra bonos mores and unconstitutional vis-à-vis a number of fundamental rights and that the common law should be developed to require that the decision to close the account be preceded by a hearing and be based on reasonable and rational grounds.[63] They relied on the case of Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC) as authority for the principle that fairness is a core constitutional value and must accordingly be a general requirement in our law.

[115] In considering this argument, Harms DP quoted from Barkhuizen supra as follows:

“Pacta sunt servanda is a profoundly moral principle, on which the coherence of any society relies.  It is also a universally recognised legal principle.  But the general rule that agreements must be honoured cannot apply to immoral agreements which violate public policy.  As indicated above, courts have recognised this and our constitution recognises this.”[64]

[116] In interpreting this quote from Barkhuizen, Harms DP states:

“This all means that, as I understand the judgment, if a contract is prima facie contrary to constitutional values, questions of enforcement would not arise.  However, enforcement of a prima facie innocent contract may implicate an identified constitutional value.  If the value is unjustifiably affected, the terms will not be enforced … It is evident from the judgment that if evidence is required to determine whether a contract is in conflict with public policy or whether its enforcement would be so, the party who attacks the clause at either stage must establish the facts.”[65]

[117] Harms DP further stated that the Barkhuizen judgment did not hold or purport to hold that enforcement of a valid contractual term must be fair and reasonable, even if no public policy consideration found in the Constitution or elsewhere is implicated[66] and he concluded that fairness was not a freestanding requirement for the exercise of a contractual right.[67]

[118] This view was confirmed in Maphango and Others v Aengus Lifestyle Properties (Pty) Limited 2011 (5) SA 19 (SCA) where Brand JA held that:

“Reasonableness and fairness are not freestanding requirements for the exercise of a contractual right. That much was pertinently decided in Bredenkamp. As to the role of these abstract values in the law of contract, this court expressed itself as follows in South African Forestry Co Ltd v York Timbers Ltd 2005 (3) SA 223 (SCA) [2004] 4 All SA 168 para [27]:

‘Although abstract values such as good faith, reasonableness and fairness are fundamental to our law of contract, they do not constitute independent substantive rules that courts can employ to intervene in contractual relations.  These abstract values perform creative informative and controlling functions through established rules of the law of contract. They cannot be acted upon by the courts directly. Acceptance of the notion that judges can refuse to enforce a contractual provision merely because it offends their personal sense of fairness and equity will give rise to legal and commercial uncertainty.’”[68]

Brand JA went on to state:

“Unless and until the Constitutional Court holds otherwise, the law is therefore as stated by this court, for example in South African Forestry Co, Brisley and Bredenkamp.  Accordingly a court cannot refuse to give effect to the implementation of a contract simply because that implementation is regarded by the individual judge to be unreasonable and unfair. Strictly speaking the inquiry into the reasonableness and fairness of the respondent’s termination of the contract of the leases is therefore unnecessary.”[69]

[119] These principles were followed again in Potgieter and Another v Potgieter 2012 (1) SA 637 (SCA).[70]  It is therefore not strictly necessary in these circumstances for me to consider whether Marx acted reasonably.

[120] The applicants also argue that clause 9.3 was contra bonos mores and consequently unenforceable.

[121] A court will not enforce a contract that is unlawful or contrary to public policy.  In Barkhuizen v Napier [2007] ZACC 5; 2007 (5) SA 323 (CC) the court stated:

“What public policy is and whether a term in a contract is contrary to public policy must now be determined by reference to the values that underlie our constitutional democracy as given expression by the provisions of the Bill of Rights.  Thus a term in a contract that is inimical to the values enshrined in our Constitution is contrary to public policy and is, therefore, unenforceable.”[71]

[122] Clause 9.3 is a standard and common termination on notice clause that appears across commercial contracts throughout South Africa. Such standard clauses may often affect the rights of children, as in the examples given earlier in considering the argument that representations must first be made before the notice clause can be invoked.  Irrational results could follow if such standard clauses were found to be contrary to public policy and unenforceable merely because they might affect children.

[123] The test is whether objectively, clause 9.3 offends against public policy and violates a right in the Bill of Rights. It is not a subjective test.[72]

[124] I must thus find that clause 9.3, objectively, violates a value protected by the Constitution. I have already dealt with the principle of pacta sunt servanda earlier.  Clause 9.3 must also be read in the context of the fact that the applicants themselves are given, in clause 9.2, the identical and reciprocal right to terminate the contract.  The applicants nowhere contend that their own right to cancel the contract is against public policy. 

[125] The applicants have not put forward any cogent facts as to why the clause, viewed objectively, is contra bonos mores.  Pridwin, in invoking the provisions of the clause, simply enforced the terms of the contract. It is nowhere suggested that the applicants did not sign it freely and voluntarily, or that they signed it from a position of unequal bargaining power. Pridwin had a valid reason to terminate, and further, in terms of its own s 18 right to freedom of association in terms of the Constitution, there seems no reason to find that such a termination clause on notice is objectively against public policy and unenforceable.  This is particularly so as Pridwin is an entirely independent private  entity  with  no  obligation  to  provide  a  basic  education in terms of s 29(1) of the Constitution. The position may well be different in relation to such a clause appearing in the contract of a low fee independent school subsidised by the State which does have an obligation to provide a basic education and where those learners may be in a position of unequal bargaining power.  However, as those are not the facts here, I need not consider that issue further.

[126] Having found that it is not strictly necessary for me to consider whether Marx acted reasonably, for the sake of completion I shall nevertheless do so. As set out by Pridwin, and as appears in its appendix “A” to its Heads of Argument, it appears that the father’s misconduct was not a single instance but repeated serious misconduct over a period of 8 months.

[127] Marx sets out in his Answering Affidavit a litany of events that informed his decision.[73] The allegations are supported by affidavits from numerous parties, including teachers at the school, coaches and parents.  I quote but a few examples to demonstrate the seriousness of the allegations levelled against the first applicant. 

[128] An intern at the school in charge of tennis describing her interaction with the first applicant who had objected to the tennis trial lists she had prepared for 8 and 9 year olds stated, in relation to her interaction with the first applicant:

“13. I went home in tears that evening as this was the most traumatic experience that I have ever had in my time as an intern.  It diminished my self-confidence and it took me a long time to recover from what I perceived to be verbal harassment by the first applicant.”[74]

[129] A parent described in detail the first applicant’s aggressive behaviour at soccer trials towards one Prinsloo and also towards Marx, stating:

“The first applicant continued to shout and his physical behaviour appeared even more aggressive, as he waved his arms past Marx’s face while shouting at him and even grabbed Marx’s wrist and put his face close to Marx as he shouted”.[75]

She concluded:

“I do not want my child to be exposed to such inappropriate, disrespectful and aggressive behaviour at school”.[76] 

[130] In regard to the incident at the Trinity House cricket festival on 10 November 2016, the umpire, Kgomotso Mokoele describes how, after giving a child out, the first applicant approached him on his way to the toilet, swore at him and threatened him saying he “would wait for me after the game and kill me because I did not show respect” and all this while the first applicant “was holding a cricket bat in his hand in a threatening manner”.[77]

[131] Marx himself, when summoned to Trinity House as a result of this incident, after apologising to the headmaster of Trinity House for the applicant’s behaviour, describes his interaction with the first applicant there as follows:

“I then went to the first applicant who was watching the game and called him aside. I explained to him that his behaviour, as reported to me, was unacceptable. At this, the first applicant became angry and said that he would speak to whomever he pleased … He informed me that where he came from if an umpire made a bad decision they would take a cricket stump out of the ground and stab him.  He went on to say that he had good connections with the EFF (or Economic Freedom Front political party) and could easily destroy the school.”[78]

[132] The final incident of the first applicant’s interference in the school’s sporting events occurred at the soccer trials on 27 June 2016 and is fully described by Marx, Joubert and Prinsloo. Marx also describes how the first applicant arrived at his office after this incident and engaged with him on it.[79]

[133] The evidence given by Pridwin and the versions of the various actors in the matter have not been meaningfully gainsaid by the applicants. Indeed, the first applicant’s own admissions demonstrate interference in the sporting activities of the school as previously detailed by me. As already stated, based on the principles in the Zuma and Plascon-Evans decisions supra, on how to resolve competing versions in motion proceedings, I must resolve the disputes in Pridwin’s favour. I would need to find that the version of Marx, and Pridwin’s teachers, coaches and parents raise “fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers”.[80] This court cannot find this in light of the extensive evidence presented of misconduct of the applicant over a sustained period of time. 

[134] Most telling is the fact that the applicant entered into an agreement with Pridwin on 28 January 2016, some 5 months before the termination, which was recorded in, inter alia, the following terms:

“[AB] undertakes to abide by the following:

1. Refrain from coaching or offering advice or giving his opinion to any boys involved in any sporting activities at Pridwin.  This includes his sons when they are under the care and authority of the coach.

2. He may not sit with or near any of the boys involved in sports matches.

3. He will not publically criticise any Pridwin or opposition referees and will abide by their coaching, refereeing and selection decisions.

4. He will not do or cause any action which may result in bringing the school into disrepute.”[81]

[135] I do not believe that the applicant would have entered into such an agreement to refrain from such behaviour had there not been some level of misconduct on his part.  It is further significant that, at that stage already, it was contemplated by the applicants themselves that they would be removing their children from the school as is recorded later in the same agreement.[82]

[136] It was unsurprising, from the ongoing incidents, that the situation had become intolerable for the school, having regard to all the deleterious consequences upon the other people in the school, including the other school children, the parents and the teachers. It was also apparent that reputational harm was suffered by the school as a result of the fact that certain of the conduct of the applicant occurred at another school, Trinity House, and resulted in Marx being summoned from Pridwin to Trinity House to deal with the events that had unfolded there.

[137] Accordingly, having regard to the fact that the alleged misconduct took place over an extended period of time of about 8 months, and having regard to the fact that the first applicant, even on his own version,[83] on 27 June 2016, breached the undertakings he gave in the 28 January 2016 agreement, I am of the view that, in any event, Mr Marx acted reasonably in finally terminating the contract.  Had this matter been brought by way of action, rather than on application, the evidence may possibly have shown under cross-examination that the applicant’s misconduct was not as alleged. However, he elected not to do so, and not to subject his conduct to scrutiny under cross-examination. In that this application was brought for final relief on motion, I am obliged to apply the longstanding principles of Plascon-Evans in favour of Pridwin.

[138] I further consider that Marx acted eminently reasonably in exercising his discretion, in the sense that, despite being entitled to terminate DB and EB’s attendance at the school immediately for the first applicant’s material breach in terms of clause 9.4, specifically taking the children’s interests into account as weighed up with the other children’s interests in the school, he decided not only not to terminate forthwith, but rather to allow the children to remain longer than even the term’s notice set out in clause 9.3, namely until the end of the year.

[139] In furtherance of their submission that Marx exercised his discretion unreasonably, the applicants also argued that Marx should have applied “alternative sanctions” rather than go as far as to terminate the contract, having regard to sections 28(2) and 29(1)(a) of the Constitution.  The applicants accepted, in making this submission, that Marx also had to safeguard the interests of the school as a whole and the other learners who attended.[84]

[140] They stated that Marx had at least four options open to him, including issuing a final written warning, banning the first applicant from attending sport practices, banning him from addressing or conversing with the staff members and barring his children from the sporting programme at Pridwin.

[141] However, Marx had already attempted to impose a lesser sanction by entering into the agreement with the first applicant on 28 January 2016 which the first applicant subsequently breached. He had accordingly already given the first applicant a full opportunity to desist in his behaviour.  Furthermore, the suggestion by the applicants that their children should have been barred from the sporting programme at Pridwin is surprising as, in my view, that option would have caused ongoing distress and harm to their children on a daily basis whenever their friends went off to engage in sporting activities whilst they were not permitted to do so.  This suggestion is accordingly rejected.

[142] In all the circumstances and applying the test in DPP v Zuma supra, I find that Marx acted reasonably in terminating the parent contracts with the school, even though reasonableness was not a standard with which he was obliged to comply in terms of clause 9.3 of the contract.

 

K. THE ARGUMENTS PROPOUNDED BY ISASA AND THE FIRST AMICUS, EQUAL EDUCATION

[143] I deal briefly with the arguments of ISASA made to this Court.  To a large extent its arguments repeated and reinforced those of the first to third respondents. ISASA accepts that the applicants have constitutional rights in terms of section 28 of the Constitution and 29(1) of the Constitution. ISASA pointed out that ISASA and Pridwin are the bearers of constitutional rights themselves.  They refer to section 29(3) of the Constitution which grants “everyone” the right to establish and maintain independent schools as follows:

“Everyone has the right to establish and maintain, at their own expense, independent educational institutions that

(a)  do not discriminate on the basis of race;

(b)  are registered with the state; and

(c)  maintain standards that are not inferior to standards at comparable public educational institutions.”

[144] ISASA referred to the case of Ex Parte Gauteng Provincial Legislature[85] where it was stated:

“Those persons who want more than that and wish to have educational institutions based on a special culture, language or religion which is common, have the freedom to set up such institutions based on that commonality. Section 29(3) of the Constitution accordingly preserves an important freedom.” [my emphasis]

[145] Pridwin has been set up in terms of section 29(3) of the Constitution and is an entirely independent school financially as it receives no subsidies from the State.

[146] Further, in relation to whether there is an objective violation of public policy in the provisions of the parent contract, ISASA, too, points out that there is no suggestion by the applicants that when they signed the parent contract, they were unaware of the obligations to which they were bound nor that it was invalid for want of their having equal bargaining power.

[147] ISASA reminds the court that, in its introduction, the parent contract advises the applicants that:

“It is important that you read and understand these policies as they have important legal consequences for you. If there is any provision in this contract that you do not understand, please ask for an explanation before signing.”[86]

What is further made clear in the contract at clause 4.2 is that the applicants are required to co-operate in order for the school to fulfil its obligations.

[148] ISASA rightly submits that on the Plascon-Evans principles, the applicants have not discharged the onus of demonstrating that Pridwin’s decision to terminate the parent contract was irrational.  Outside the application of PAJA and the Constitution, a person does not have the right to be heard before a decision is taken contrary to their interest.  The SCA has held that there is “no general duty on decision-makers to consult interested parties for a decision to be rational under the rule of law”.[87] Everything depends on the facts of the case and any legislative requirements that apply. Even under the common law, the SCA has held that a duty of consultation “will arise only in circumstances where it would be irrational to take the decision without such consultation”.[88]  As already canvassed earlier, I can find no basis on which Pridwin’s decision to terminate the parent contract was irrational, having regard to the facts placed before the court by Pridwin as read together with the facts placed before the court by the applicants. 

[149] I turn now to deal with the submissions made by Equal Education who was admitted as an amicus curiae of this Court insofar as they do not overlap with other submissions already covered. Equal Education states:

“In respect of low fee independent schools, the broad termination clauses are not alive to the circumstances of parents and learners who attend these schools for various reasons.  For example, parents may send their children to low fee independent schools because they are the nearest and most accessible to learners who would otherwise not be able to attend school; or where they are unable to find places in public/government schools.”[89]

[150] Equal Education submits further that another public policy consideration that must be borne in mind with regard to children from low income families attending low fee independent schools is the unequal bargaining position of the parties.[90] Equal Education states:

“Parents who are party to these Parent Contracts (or contracts of adhesion), especially those from low income families, do not have the ability to resist them or are unaware of their real import. As explained in EE’s Founding Affidavit, some parents end up sending their children to low fee independent schools because this is the only option available to them.”[91]

[151] Whilst these submissions certainly engender the sympathy of this Court, and whilst such a clause in a low fee independent school subsidised by the State in the circumstances described by Equal Education may indeed be challenged, I am not called upon to determine this on the facts before me.  In any event, Equal Education has not provided concrete evidence of its allegations in this regard in its affidavit through the presentation of expert reports or facts on which it relies for its statements.

 

L. THE IDENTITY OF THE APPLICANTS AND THEIR CHILDREN

[152] The applicants have been at pains to conceal the identity of themselves and their two sons. The courts have in many situations protected the identity of children and vulnerable parties in all appropriate cases.

[153] I am of the view that the identities of the applicants and their children should not be disclosed in order to shield the children against the potential adverse effects of publicity on them.

[154] I shall accordingly grant an order prohibiting publication of the names in accordance with the principles of Johnson Media Investments Limited v M, PD, Minister of Justice and Constitutional Development and Others CCT 08/08 [2009] ZACC 5.[92]

[155] I shall also, for the purposes of enforcement of this judgment, provide that any affected party wishing to enforce same, as well as the Deputy Sheriff, shall be entitled to approach the applicants’ present attorneys of record for the names of the applicants, and the applicants’ attorneys shall not withhold same.

 

M. CONCLUSION

[156] In all the circumstances, I find that Pridwin acted lawfully in terminating the parent contracts in accordance with clause 9.3 thereof and Part B of this application falls to be dismissed.

[157] As upper guardian of all minor children, this Court may make orders which it considers to be in their best interests.  In this case, it would appear to me to be harmful for the children to have them uprooted from their school in the middle of an academic year.  The children have already been at the school for a substantial period of time and it would be difficult for them to integrate into another school in the middle of a term and in the middle of an academic calendar.  I am accordingly of the view that, despite the success of the first to third respondents and ISASA in this application, the children must be entitled to remain at Pridwin until the end of the 2017 academic year.

[158] I must now consider the request made, for the first time by counsel at the hearing of this matter, that I order that the interim order in Part A be discharged. Modiba J expressly ordered that her interim order will operate:

“3.1 Pending the final determination of Part B of this application (including the determination of any appeals, such appeals to be proceeded with on an expedited basis).”

[159] In weighing up the balance of convenience in making her order, she explained that:

“For DB and EB to be forced to leave Pridwin pending Part B to undergo home schooling or attend another school, then to return when Part B succeeds would be extremely disruptive to their schooling and to the relationships they have established both with their teachers and learners.  Leaving Pridwin … would therefore not serve their best interests.[93]

[160] These considerations apply equally in relation to the dismissal of Part B of this application and accordingly there is no reason for me to discharge the interim order, but rather to leave it in place pending the determination of any appeals.

[161] The applicants, in their written submissions dated 1 June 2017, and to demonstrate that they would proceed with any appeals on an expedited basis, as required by Modiba J, made certain undertakings. However, it is not for this Court to interfere in the manner in which the applicants choose to proceed going forward, and whatever approach the applicants choose to adopt will remain solely within their discretion.

[162] There is no reason why the costs in relation to this application should not follow the result.

[163] I accordingly make the following order:

1. Part B of the application is dismissed.

2. The Applicants are to remove their two minor children from the First Respondent at the end of the 2017 academic year and comply with all their obligations in terms of the parent contracts until such time.

3. Paragraph 2 of the interim order of Modiba J dated 1 December 2016 shall remain in place pending the determination of any appeals from this decision, and such appeals shall be pursued by any appellants on an expedited basis.

4. Subject to authorisation granted by a Court in exceptional circumstances, the publication of the identity of, and any information that may reveal the identity of, the Applicants and their children is prohibited.

5. Any party hereto, as well as the Deputy Sheriff of the Court, seeking to enforce this judgment shall be entitled to require that the names of the Applicants be furnished to them by the Applicants’ present attorneys of record for purposes of such enforcement.

6. The First and Second Applicants are ordered, jointly and severally, to pay the costs of the First to Third Respondents and the Intervening Party, including the costs of two counsel.

 

________________________________________

CLARE HARTFORD

ACTING JUDGE OF THE HIGH COURT

GAUTENG LOCAL DIVISION, JOHANNESBURG

COUNSEL FOR APPLICANTS                 S BUDLENDER

                                                                  V BRUINDERS

INSTRUCTED BY                                     M F JASSAT DHLAMINI INC

COUNSEL FOR FIRST TO

THIRD RESPONDENTS                          A FRANKLIN SC

                                                                 A BISHOP

INSTRUCTED BY                                    WEBBER WENTZEL

COUNSEL FOR INTERVENING

PARTY                                                     N MAENETJE SC

                                                                M STUBBS

INSTRUCTED BY                                  BOWMAN GILFILLAN INC

COUNSEL FOR AMICUS CURIAE        N MUVANGUA

                                                               L ZIKALALA

INSTRUCTED BY                                  EQUAL EDUCATION LAW CENTRE

DATES OF HEARING                            25-26 MAY 2017

DATE OF JUDGMENT

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